Tuesday, 19 February 2013

SPINNING A TALL TALE ON SABAH

By : JOE FERNANDEZ

DR MAHATHIR Mohamad's
so-called directive on citizenships is another red herring meant to divert
attention from the tainted electoral rolls in Sabah.

We have heard it all now on
Sabah from former prime minister Dr Mahathir Mohamad. In his latest take on the
on-going Royal Commission of Inquiry (RCI) in the state, Mahathir claims that
he instructed that only those eligible in Sabah should be granted citizenship.

Citizenships are not based
on any so-called directive from the prime minister, the home minister or the Federal
Cabinet.

Citizenship is based on the
Federal Constitution, the only social contract between the state and the
people.

So, Mahathir could not have
issued such a directive on the granting of citizenships. There was no need for
one since there was no basis.

His so-called directive on
citizenships is another red herring meant to divert attention from the tainted
electoral rolls in Sabah.

The issue (child) of a
citizen by operation of law – that is, the latter holding no citizenship papers
– or the issue of a citizen by registration – that is, the latter with
citizenship papers – is eligible to be citizen by operation of law whether born
in the country or abroad.

Those born abroad must have
had their births registered at the nearest Malaysian High Commission or
Embassy, or at the British or a Commonwealth mission, where’s there’s no such
representation.

The Federal Constitution is
clear on this point.

The government of Malaysia
has no prerogative and discretionary powers on citizenship under the Federal
Constitution except the federal cabinet when it comes to resolving the
citizenship woes of Malaysians.

The federal cabinet can act
in this case.

Many of those eligible to be
citizens by operation of law in Malaysia are stateless because they carry no
birth certificates like their parents, grandparents and ancestors. These
include Indians and the Orang Asal (Orang Asli) in Peninsular Malaysia and the
Orang Asal –Dusuns, Muruts, and Dayaks – in Sabah and Sarawak. The sea gypsies
or Bajau Laut – Pala’u – in Sabah are also stateless.

The issue of a citizen by
naturalisation – that is, the latter a foreigner who obtained citizenship in
Malaysia – is eligible for citizenship by registration. If born overseas, there
are the other requirements to be met.

Permanently doomed

Failure to register as a
citizen or failure to register the birth if born overseas would mean that the
issue would be considered a citizen of the naturalised citizen’s old country.

There are many in Malaysia
in this category as a result of being born in Brunei, Indonesia (Kalimantan)
and India, among other places. They are permanently doomed to carry red
(permanent residence) and green cards (temporary residence) or even Special
Passes (white) from the Immigration Department.

Citizenship by
naturalisation is a long process which begins with entry permit and work
permits. However, foreign spouses of Malaysians need only to get a social visit
pass in lieu of entry permit. The catch is one cannot apply for a work permit
on a social visit pass.

The next step for the
foreigner would be to acquire temporary residence –green card – followed by
permanent residence, that is, red card.

Given the required numbers
of years in residence in Malaysia, and police clearance from the old country
and the Malaysian police, a foreigner can apply for citizenship by
naturalisation.

By right it should be a
hassle-free process but the truth here is stranger than the fiction. Anything
can happen at this juncture from long delays to an ominous silence from the
authorities concerned.

It would be interesting to
know on what basis and by what authority citizenships were issued to foreigners
in Sabah. Mahathir had previously acknowledged that he gave out 200,000
citizenships in Sabah to those “who had stayed there for a very long time,
spoke Malay unlike the Chinese, etc”.

Mahathir also denied even
permanent residence in Sabah to some 300 deserving foreign professionals serving
in the state, many for even up to 30 years. The Sabah government recommended
them for permanent residence in Sabah and Malaysia.

The matter was only resolved
when Chong Kah Kiat, as Chief Minister, personally called upon Mahathir at his
office in Putrajaya and brought up the matter. It transpired that the little
Napoleons in Putrajaya had been routinely consigning such applications from
Sabah to the wastepaper basket.

The fact that the
professionals concerned were non-Muslims may have had something to do with
their long wait.

Back to square one

Putrajaya has no business
whatsoever, under the constitutional documents on Malaysia, to block
recommendations from the Sabah or Sarawak government on permanent residence in
their respective territories.

It’s back to square one
today in Sabah and perhaps in Sarawak, too.

Yet we are told by Mahathir
that he liberally gave out citizenships in Sabah during his 22 years in office
as Prime Minister.

Being in Malaysia a very
long time and speaking Malay are not by themselves sufficient qualifications to
be granted citizenship in the country. One must go through the proper
procedures and process as set down in the Federal Constitution.

In Sabah and Sarawak, there
are added criteria under the Malaysia Agreement. The governments of these two
states must be the initiating and recommending body for foreigners in their
territory who apply for citizenship.

The federal government
cannot take it upon itself to issue citizenships to foreigners in Sabah and
Sarawak.

Anyone who holds citizenship
in Malaysia in violation of the Federal Constitution holds no citizenship at
all. It’s a nullity in law from the very beginning.

The same fate applies to
those who obtained citizenship by furnishing false and misleading information with
or without the knowledge of the authorities concerned.

The revelations at the RCI
tell of foreign-born applicants obtaining Malaysian personal documents merely
on the strength of statutory declarations wherein they claimed birth in Sabah.

The crux of the story in
Sabah, and one for the RCI to determine, is the extent to which the electoral
rolls in the state has been tainted by those ineligible to be there.

That’s not the end of the
story.

We have also heard at the
RCI that duplicate MyKads of Malaysians had been issued by the National
Registration Department (NRD) to foreigners for the purposes of voting.

These foreigners apparently
voted on behalf of Malaysians who had registered as voters but seldom turned up
on polling day.

Other Malaysians who were
eligible to register as voters didn’t bother to do so. This provided another
great loophole to nefarious elements who did not hesitate to issue duplicate
MyKads to foreigners to enable them to register as voters on behalf of
Malaysians.

Mahathir has been silent on
these allegations which emerged during revelations at the RCI.

Instead, he keeps harping on
what his directives were on the issuance of citizenships in Sabah and claimed
that “other people including Opposition Leader Anwar Ibrahim may have gone off
at a tangent in Sabah” and obviously “unknown to him”.